Complainant

Respondent

Anonymised Parties

A Digital Marketing Executive

A Water Treatment Solutions Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00026393-001

18/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00026393-002

18/02/2019

The complainant was employed by the respondent as a Digital Marketing Executive from 8th May 2017 until her resignation on or about 25th January 2019. The complaints were submitted to the Workplace Relations Commission (WRC) on 18th February 2019 and relate to alleged acts of discrimination on the grounds of Gender, Race, Family Status, Disability and “Other. The complainant also alleges that she was harassed and victimised within the meaning of the legislation and was dismissed for discriminatory reasons and for opposing discrimination. A complaint was also referred to the WRC alleging a breach of the Terms of Employment (Information) Act, 1994.

Naming of the parties

Due to the sensitive nature of this complaint I have decided to use my discretion and anonymise this decision. Both parties are in agreement that the decision be anonymised.

The complainant stated that her difficulties with the respondent arose towards the end of October 2018 when her pattern of attendance was changed. The complainant stated that she had previously worked from home a number of days each week which was then unilaterally changed by the respondent and she was required to attend the Office five days per week.

The complainant stated that she had a number of medical appointments in November 2018 and when she notified the respondent of her pregnancy on 19th November 2018, her hours of work were reduced to four days per week the following day.

The complainant also outlined that a meeting took place with the respondent’s Web designer on 14th November 2018 she was alleged to have behaved inappropriately and appeared disinterested at the meeting. The complainant stated that she was called to a meeting with Management on 16th November 2018. The complainant stated that she was not informed of the purpose of the meeting and was not given the opportunity to have anyone in attendance with her. The complainant outlined that she was treated aggressively by Management at the meeting and questioned in relation to her medical appointments and her attitude at the meeting on 14th November 2018. The complainant stated that she had not felt well at the meeting of 14th November 2018. The complainant stated that there was no mention of any Business review meeting or any requirement to reduce working hours at the meeting of the 16th November 2018. The complainant outlined that she felt unwell after the meeting with Management and went home for the rest of the day. The complainant stated that she then informed the respondent that she was pregnant on 19th November 2018 and her hours of work were reduced the following day.

The complainant stated that she sought a copy of the respondent’s grievance procedure on 3rd December 2018 in relation to raising the issue of the reduction in hours and did not receive the procedures despite multiple requests until she was given a letter confirming an “informal warning” on 8th January 2019, which arose as a result of the meeting on 16th November 2018. The complainant stated that despite the respondent stating that the meeting of 16th November 2018 was not a disciplinary process, she did not have the grievance procedures and as far as she was concerned, she had received a warning in writing from the respondent without fair procedures and which included issues not raised at the meeting of 16th November 2018.

The complainant stated that she was subsequently absent on sick leave and felt that she had no option but to resign from her employment as a result of the respondent’s behaviour towards her.

The complainant contends that she was discriminated against on the grounds of Gender, Race, Family Status, Disability and “Other. The complainant also alleges that she was harassed and victimised within the meaning of the legislation and was constructively dismissed for discriminatory reasons and for opposing discrimination. The complainant is seeking compensation in relation to her complaint.

Legal Submissions

Counsel for the complainant cited the cases of Trailer Care Holdings Limited v Healy EDA 8/2012 in support of its position that the complainant entered into a protected period from the commencement of her pregnancy. The complainant quoted the Labour Court as having said that the special protection afforded is “a fundamental and inviolable right within the legal order of the [European] Union which the Courts and Tribunals must vindicate within the limits of their jurisdiction”.

In citing A Company v A Worker EED016 Counsel quoted the Labour Court as stating that in relation to pregnant workers being afforded special protection “pregnancy can change the ability of the worker to do the job for which they are employed. They may suffer more sickness than normal; they may find that they are constantly tired. They may find it extremely difficult to perform the full range of duties associated and in a minority of cases may find it impossible”.

Counsel also Cambell v Bank of Ireland DEC2013-046, Byrne v Minster for Defence IEHC453 and A Technology Company v A Worker EDA0714 in support of its position that the complainant has succeeded in establishing a prima facie case of discrimination which it contends the respondent has failed to rebut.

Counsel also cited the case Shinkwin v Millett EED044/2004 wherein the Labour Court stated: “….in a modern employment relationship, employees are entitled to expect that they will be treated with respect during the course of their employment. Employees generally and pregnant employees in particular are also entitled to elect that they will not be subjected to conduct which exposes them to physical or psychiatric injury including stress related sequelae”.

In support of its position that the complainant was subject to a discriminatory (constructive) dismissal, Counsel for the complainant cited the cases of Western Excavating (ECC) Ltd v Sharp (1978) IRLR 332 and Berber v Dunnes Stores [2009] ELR 61 in relation to the complainant satisfying the applicable legal tests.

Counsel for the complainant concluded by stating that the complainant has clearly made out a prima facie case of discrimination and that the respondent has failed to provide any cogent evidence in its attempt to discharge the burden of proof which it bears. Accordingly, Counsel for the complainant contends that the complaints are well founded and should succeed.

The respondent refutes the complaints. The respondent stated that the complainant sought to work from home on 8th November 2018 as she had a medical appointment that day. The respondent acceded on this occasion but outlined to the complainant that she had worked at home one day each week for the previous three weeks and that this could not continue. The respondent further stated that the complainant then sought to work from home every Friday or to work just a half day each Friday. The respondent stated that working from home was not an option, but that the complainant could reduce her working hours if that was her preference. The respondent stated that the complainant had another medical appointment on 12th November 2018 and sought to take the day as unpaid or as annual leave.

The respondent stated that it was also experiencing operational difficulties at that time and a business review meeting held on 13th November identified the need to reduce some staff hours and as it had not got full time work for a Digital Marketing Executive at that time it reduced the complainant’s hours of work to four days per week.

The respondent stated that the meeting of 16th November 2018 was arranged to discuss the complainant’s behaviour at the meeting of 14th November 2018 and to address the comments made by the Web Services Manager who attended that meeting.

The respondent stated that the meeting of the 16th November 2018 dealt only with the incidents that occurred on 14th November 2018 and was a positive meeting that did not last very long. The respondent stated that following the business review meeting it notified the complainant that due to unforeseen circumstances it was reducing her pattern of attendance to four days per week. The respondent contends that the complainant’s pregnancy had nothing to do with the reduction in hours and that another employee who was not pregnant also had her hours reduced.

The respondent stated that the complainant was absent on sick leave from 10th December 2018 until 2nd January 2019 and a return to work meeting was held on 8th January 2019. The respondent confirmed that the complainant was given a letter of concern in relation to the meting that took place on 16th November 2018.

The respondent stated that the complainant was on annual leave for the 9th and 10th January 2019 and was absent on sick leave from 11th January 2019 until her resignation on 25th January 2019.

The respondent stated that it asked the complainant to reconsider her resignation and provided the complainant with the grievance procedure in the event that she wished to raise a grievance. The respondent stated that the complainant did not reconsider her resignation and instructed that all further correspondence be sent to her Solicitor.

The respondent contends that the complaints are without merit and stated that it employs a number of women and foreign citizens and does have any issues with employees who are pregnant, who are attending ante natal classes or who may be on maternity leave.

Legal Submissions

The respondent stated that the complainant has failed to establish a prima facie case of discrimination and has not proven that she was treated any less favourably than a comparator. The respondent contends that the complainant is making assertions that are not supported by evidence and therefore has not discharged the burden of proof in relation to her complaints. The respondent cited the case of Melbury Developments v Arthur Valpeters EDA0917 in support of its position in that regard.

The respondent also outlined that the complainant submitted an application to the Public Injuries Assessment Board (PIAB) and that the PIAB did not assess the complaint and authorised the complainant to issue personal injury proceedings against the respondent. The respondent confirmed that at the date of the adjudication hearing, no personal injury proceedings had been initiated against the respondent.

Counsel for the respondent concluded that the complaints are without merit and should be dismissed.

Chronology of events

The incidents that gave rise to the within complaints occurred within a relatively short timeframe commencing on or about 8th November 2018 when the complainant requested that she be permitted to work from home the following day due to a medical appointment. The respondent acceded to the request but highlighted that the complainant had worked from home one day per week for each of the previous three weeks and that this could not continue. The complainant subsequently requested that she be permitted to work a half day on a Friday or work from home every Friday. The respondent stated that working from home each Friday was not possible, but the complainant could reduce her working hours to four days per week if she wished.

Following on from this, the respondent conducted a business review on 13th November 2018 and in the Minutes of that review meeting outlined the need to reduce the working hours of some staff members temporarily due to a number of issues of concern prevailing at that time.

On 14th November 2018, the complainant was alleged to have behaved inappropriately at a meeting with the respondent’s Web Design Company and received a verbal/informal “warning” in relation to her behaviour and other issues raised by the respondent in its undated letter given to her on 8th January 2019.

On 16th November 2018, the complainant was asked to attend a meeting which was eventually deemed to have been an investigation into the complainant’s alleged behaviours but had not been notified to her at the time or in advance. The complainant outlined how she felt at this meeting and she left work early that day and subsequently informed the respondent of her pregnancy on 19th November 2018.

On the 20th November 2018, the complainant received a notification that following the business review meeting of 13th November 2018, the complainant’s hours were being reduced to four days a week.

Sadly, the complainant suffered a miscarriage on 8th December 2018 and was absent on sick leave until mid-December 2018 and subsequent annual leave until early January 2019. On receipt of the informal warning on 8th January 2019, the complainant was absent on sick leave until her resignation with effect from 25th January 2019.

The Applicable Law

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a complainant must satisfy:

85A(1) Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Harassment

Section 14A (1) of the Employment Equality Act, 1998 states as follows:

14A(1) For the purposes of this Act, where —

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is —

(i) employed at that place or by the same employer,

(ii) the victim ’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either —

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section ‘employee’ includes an individual who is —

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),

and accordingly, any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim’s conditions of employment ’there were substituted ‘contrary to section 11’ or, as the case may be, section 12.

(7) (a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Victimisation

Section 74(2) of the Employment Equality Act, 1998 states as follows:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Constructive Discriminatory Dismissal

Section 2 of the Employment Equality Act, 1998 provides as follows:

“ dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “ dismissed” shall be construed accordingly;

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The requirement to utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated,

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

The events that led to the complainant’s resignation occurred between November 2018 and January 2019. The complainant had a number of medical appointments to attend prior to notifying her employer that she was pregnant, and the respondent suggested to the complainant that in those circumstances she could reduce her hours of work. The complainant subsequently notified her employer of her pregnancy and her hours of work were reduced by the respondent the following day. Around the same time, the employer met with the complainant amid concerns of her behaviour at a meeting with a client on 14th November 2018 and although the respondent stated it was not part of a disciplinary process, the complainant was issued with an informal warning in January 2019. The complainant did not previously have a copy of the grievance procedure and had sought a copy in December 2018 to raise a grievance in relation to the reduction in hours. The grievance procedure was given to the complainant for the first time when she was being issued with the “informal warning.” The complainant felt she had no other option and resigned from her employment.

Having considered the totality of this issue, I am not satisfied that the complainant had no other option but to resign from her employment. I accept that she was issued with an informal warning in unfair and unreasonable circumstances but having received the grievance procedures for the first time in January 2019, I find that the complainant should have given the respondent the opportunity to address her grievances and rectify the situation and continue the employment relationship.

Conclusions

The complainant contends that she was discriminated against and harassed by the respondent as a result of its treatment of her after it became aware of her pregnancy. I note that the respondent was not aware of the complainant’s pregnancy at the time of its meeting with her on 16th November 2018, yet it was aware of the pregnancy at the time it reduced her working hours and when it issued its letter to the complainant on 8th January 2019 which outlined that she was being given an “informal warning.” At this point in time, the respondent was obviously dissatisfied with the complainant’s behaviour, her level of medical appointments and had already reduced her hours of work the day after being made aware she was pregnant. Nothwithstanding the contents of the respondent’s letter to the complainant, the complainant had not previously been given a copy of the Grievance Procedures and in my view, was correct to assume that she had been subject to a form of disciplinary procedure, the result of which was notified to her two months later. I also note that the meeting of 16th November 2018 was supposedly concerned only with the issues that arose on 14th November 2018, yet the informal warning included many other issues of concern to the respondent, which the complainant had no opportunity to address.

Having considered the chronology of events leading to the complainant’s reduction in hours, and notwithstanding the business difficulties being experienced by the respondent at the material time, I am satisfied on the balance of probabilities that the complainant’s pregnancy was a factor in the respondent’s decision to change her terms and conditions of employment. Given that by the 20th November 2018 when the hours of work were reduced and the 8th January 2019, when the informal warning issued, the respondent was aware of the complainant’s pregnancy, I find that reducing the hours of work in those particular circumstances constituted discrimination on the gender ground and issuing the informal warning to the complainant, and including issues she had not previously been made aware of and had not been afforded the opportunity to respond to, constituted harassment.

I find that the complainant has not discharged the burden of proof in relation to claims of discrimination on the grounds of race, disability (which was stated in this case as being pregnancy related illness) family status and “other.”

In my view and in line with the relevant case law, the complainant entered a protected period from the moment she notified the respondent that she was pregnant. The respondent had indicated in the business review Minutes that reducing staff hours would be the best option but that it would also look at other projects to retain staff levels at 100%. I am not satisfied that the respondent has discharged the burden of proof that the complainant’s pregnancy was unrelated to the reduction in working hours, especially in circumstances where it was already dissatisfied with her alleged behaviour and the level of medical appointments that the complainant needed to attend immediately prior to notifying the respondent that she was pregnant.

In all of the circumstances of this complaint, I find that the complainant was discriminated against on the grounds of gender on the basis of her pregnancy and was harassed by the respondent in its treatment of her at the material time.

Having considered the submissions of both parties, I find that the complaint is well founded in part. The complainant was discriminated against on the grounds of gender and was subject to harassment. The respondent is directed to pay the complainant €10,000 in compensation. The complaints of discrimination on the grounds of race, disability, family status, other and victimisation are not well founded. The complaint of constructive discriminatory dismissal and dismissal for opposing discrimination are not well founded.

The complainant commenced in the employment of the respondent in May 2017and contends that she did not receive a written statement of her terms and conditions of employment until 6th November 2018. The complainant contends that this was a revised contract and related to the unilateral changes implemented to the complainant’s pattern of attendance at that time. The complainant contends that, as she did not receive a statement of written terms and conditions of employment within two months of the commencement of her employment, the respondent has breached the legislation.

The respondent contends that the complainant was facilitated with working from home when this was requested. The respondent contends that the complainant’s hours were reduced following a business review and that there were other employees who also had their hours of work reduced.

It was not disputed by the respondent that the complainant did not receive written terms and conditions of employment within two months of the commencement of employment in compliance with Section 3 of the Terms of Employment (Information) Act, 1994. Accordingly, I find that the respondent has breached the legislation as claimed.

The complaint is well founded. The respondent is directed to pay the complainant €740.96 (two weeks gross pay) in compensation.

Discrimination Harassment, Victimisation, Constructive Discriminatory Dismissal